In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the International Humanitarian Law and Human Rights.
All through these years, it has been agreed globally as that there are certain acts that should be allowed during a war and there are certain acts which should not be not even towards your enemy and this idea laid the foundation stone of the Humanitarian Laws that we see today.
It is found in old texts of the countries like India, China and many other countries in the middle east that there has always been certain guidelines or principles that were followed when enemy states used to go on a war against each other. Like in India, we find principles like one should not kill his enemy when he(enemy) does not possess any type of arms to protect himself in texts like Ramayana and Mahabharata. Apart from that in “On the Law of War and Peace” by the jurist Hugo Grotius, he laid down certain principles and rules to be followed during a war which included prohibition regarding the use of poison and poisoned weapons, rape and killing of all those in enemy territory – even women and children, and prisoners.
International Humanitarian Law
International humanitarian law came into existence so that the activities of the countries at war can somehow be regulated in a broad sense to ensure that no matter what basic human rights remain intact even for the enemy personnel if they get caught during the warfare by the opposing country. Now today International humanitarian law can be defined as a set of rules which ensure humanitarian rights, to limit the effects of armed conflict and thus it is also known as the law of war or the law of armed conflict.
Not only this set of rules involve the person who is actually involved directly with the war but it also sets out certain rules to ensure the safety of the civil persons in the country who are not directly involved with the war. International humanitarian law primarily focuses on two areas;
- The protection and safety of the civil persons of the countries at war, who are in no way contributing to the war
- The guidelines and restrictions to be followed by the countries at war regarding the kinds of weapon used, the way enemy soldiers to be treated if caught during warfare etc.
From the term itself, the meaning is pretty evident, in simple words human rights means the rights which are inherent to all human beings, irrespective of their gender, religion, caste, creed, race, language, religion, nationality or any other attribute human may possess. Few of the prominent human rights are the right to life and liberty, freedom of speech and expression, right to education, right to choose and practice any profession legally and many more.
Now, these basic inherent human rights have to be implemented in every country around the world and each country has its own way to implement them. For example, in India inherent human rights are termed as Fundamental rights and those are ensured under the Constitution of India. The notable thing is in modern era international human law binds all the Governments of different countries to make sure they act in certain ways or to refrain from certain acts so that they can ensure and protect human rights and fundamental freedoms of individuals all around the world.
The United Nations so that they can regulate the human rights and ensure that they are protected all around the world created a comprehensive body of human rights law—a universal and internationally protected code to which will bind all the people in the world uniformly irrespective of their gender, religion, caste, creed, race, language, religion, nationality or any other attribute human may possess. Thus it has successfully established a broad range of rights which includes civil, cultural, economic, political and social rights to be maintained and followed internationally.
The Charter of the United Nations and the Universal Declaration of Human Rights was accepted by the United Nations General Assembly in 1945 and 1948, respectively and worked as the founding stones of this body. For the United Nations it worked as an opportunity to expand themselves into fields like specific standards for women, children, persons with disabilities, minorities and other vulnerable groups to ensure growth or development socially, culturally, economically etc. and not only be limited to maintaining peace all around the world.
International Humanitarian Law and Human Rights Law
If we observe closely we will see that both International Humanitarian Law and Human Rights are closely associated and often leads to legal confusion as both of the primarily deals with the actions taken by the military. One of such major issue caused by the interplay of both of this started with the very first statement of Human Rights when it was sought to be implemented worldwide regarding its stance on dealing with armed conflicts and the threat or the actual use of nuclear weapons in the warfare.
Now, in determining which laws to be applicable in cases of armed conflict the International Court of Justice ruled that although the International Covenant on Civil and Political Rights mentioned in the Human Rights remains intact even during the war and which in a way protects the one’s life taken arbitrarily during warfare in principle but this law is more of a general in nature or lex generalis and thus it applies to all the possible circumstances in which a person’s life can be threatened, and not specific to the armed conflict situation.
Thus the court settled the issue of the interplay of IHL and human rights law and declared that human rights law is deemed to apply at all times and thus it is a lex generalis, and International Humanitarian Law which mainly comes into the picture when there is an armed conflict and thus it is a lex specialis. In other words, when human rights law and IHL are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflict.
To conclude it can be said that although the International Humanitarian Law and the Human Rights are there with the main agenda of maintaining peace in the world and keeping the basic human rights alive. But it is also a normal phenomenon followed in the legal field which is to prevail the specific laws with respect to the general ones according to the circumstances at hand and hence when it comes to armed conflicts the International Human Rights Laws prevail over the Human Rights.
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